Judge rules troopers should face civil court
A federal court judge ruled Friday that a jury should decide if two state police troopers used excessive force as part of a civil rights lawsuit brought by the father of Michael Ellerbe, a 12-year-old boy who fled from police and was fatally shot. In a 101-page opinion, U.S. District Court Judge Joy Conti ruled that a reasonable jury could conclude that Trooper Samuel Nassan used excessive force when he shot Ellerbe on Dec. 24, 2002.
In 2003, Ellerbe’s father, Michael Hickenbottom, sued Nassan and Trooper Juan Curry, who was also involved in the chase. The troopers were chasing Ellerbe after he ran from a stolen vehicle in Uniontown’s East End.
As Curry hopped a fence to continue chasing Ellerbe, his gun accidentally discharged, according to inquest testimony in the case. Believing his partner had been shot when he heard the gunfire, Nassan fired his service weapon, according to testimony.
The shot killed Ellerbe.
At an inquest into the youngster’s death, both troopers testified they believed Ellerbe could have had a weapon on him because he ran in a sideways fashion during the pursuit and kept reaching his hands into his pocket.
Inquest jurors cleared both troopers of wrongdoing and both federal and county prosecutors accepted that ruling and declined to prosecute the men.
But in coming to the conclusion that the troopers should be tried civilly, Conti also relied on a deposition given by Melvin Duley, a Uniontown boy who watched the chase from his bedroom window.
Duley’s testimony differed starkly from the troopers about when they drew their guns, and he claimed to have heard three shots fired at Ellerbe.
Conti ruled that because there were different versions of what happened during the shooting, a reasonable jury could conclude that Curry fired his gun more than once.
Conti also ruled that, based on Duley’s testimony, a jury could conclude that Nassan’s account of the shooting was not credible
“Courts have found an officer’s use of deadly force reasonable where the circumstances provided a sound reason for the officer’s belief that the suspect posed a significant threat of injury to the officer,” she wrote.
Conti found that the police “had no reason to believe that the 5-foot-2, 110 pound Ellerbe was armed, nor did they perceive an immediate threat to themselves or anyone else when they fired. Based upon the facts viewed in favor of plaintiff, defendants could see both of Ellerbe’s hands at the time of the shooting and he did not make a sudden motion of any kind that placed them in fear of injury. Defendants did not fire at Ellerbe in response to any immediate action, but simply fired at him while he was running from them with his back to them.”
Even if Nassan and Curry felt threatened because Ellerbe fled, Conti found that “they still cannot show that they were justified in shooting him solely to prevent his escape. Even when threatened, an officer is only justified in shooting as long as it is objectively reasonable for him to think that he or another is in peril.”
“The fact that Ellerbe fled from the scene of a crime, first in the car, and then on foot did not in itself indicate that the slight Ellerbe presented any danger to the experienced 260-pound defendant Nassan and defendant Curry,” Conti wrote.
Conti also rejected a claim of qualified immunity filed on behalf of Curry and Nassan. Qualified immunity means that they would be immune from suit based on their jobs. That immunity can be overcome if Ellerbe’s constitutional rights were violated.
“The court concludes, after viewing the disputed facts in the light favorable to plaintiff, that it was clearly established at the time of the shooting that it was a violation of the constitution for defendants to shoot a fleeing, unarmed suspect in the back to prevent escape when it was unreasonable for defendants to believe the suspect was armed or made any offensive gestures toward defendants,” Conti wrote.
But the jurist also dismissed claims that police conspired to protect the troopers, or that the shooting was somehow racially motivated.
“Plaintiff has not pointed to any evidence showing that the defendants’ actions were motivated by racial animus, nor does the record provide any support for that proposition,” Conti wrote in dismissing that claim.